Introduction to Unlawful Presence

Did you overstay your visa by more than 180 days and have an American relative in the United States? Chances are you can apply for a waiver of unlawful presence. The U.S. immigration system is strict, but the reassuring news is, the I-601A, which is an application for provisional unlawful presence waiver, offers a way to resolve your status and move forward with your life and family plans.

There are two primary types of unlawful presence under Section 212 of the Immigration and Nationality Act (INA). Unlawful presence means the time a noncitizen remains in the United States without proper authorization.

1. Unlawful Presence for 180 Days to Less Than One Year:
   A noncitizen who accrues unlawful presence for more than 180 days but less than one year and then voluntarily departs the United States before removal proceedings are initiated is barred from reentering the United States for three years.
2. Unlawful Presence for One Year or More:
   A noncitizen who accrues unlawful presence for one year or more, whether continuously or in aggregate, and then leaves the United States is barred from reentering for ten years.

Both types of unlawful presence can have serious consequences for future immigration applications, such as applying for a visa, adjustment of status, or other immigration benefits. There are certain exceptions and waivers available depending on the circumstances.

If you or a loved one are in America unlawfully, you risk a 3 or 10-year bar from applying for permanent residence or visiting the United States. When caught in such an uneasy state, the I-601A provisional waiver can help you avoid the ban and facilitate your application for a green card (permanent residency) from your home country.

The I-601A Waiver: What Is It?

The I-601A is a form used by immigrants who entered the country without documentation or overstay in the United States to apply for a waiver of inadmissibility and avoid an entry ban of three to ten years. Typically, the applicant could have been eligible for permanent residency application, but their unlawful entry and unlawful presence in the country may complicate the process. Such persons may have a spouse or parents who hold green cards and are U.S. citizens.

To help to mitigate any penalties and improve your chances of being approved for permanent residency, you can submit an I-601A waiver to the U.S. Citizenship and Immigration Services (USCIS) and after its approval, travel back to your country of origin to appear for an immigrant visa interview before a consular officer. An experienced waiver attorney, Himani Bhardwaj, who is our principal attorney of HBM Law Offices, can help determine if you are eligible for the I-601A waiver and navigate this process.

Who Can Apply for the I-601A Provisional Waiver?

You can apply for the I-601A provisional waiver if you meet the following conditions.

• You must be 17 years or older.
• The USCIS also requires your physical presence in the country to submit the application and provide biometrics.
• You must have initiated the process of applying for an immigrant visa.
• Your eligibility for the waiver depends on your specific inadmissibility. Exceptions are made for overstays but you won’t be eligible if you have committed serious offences and crimes.
• You must demonstrate that denial of permanent residence will adversely affect your spouse, parent, or relatives who are permanent residents. This must be related to extreme hardship or humanitarian circumstances.

Inadmissibility: 3-Year Bar vs. 10-Year Bar

Unlawful presence in the country can lead to a three or ten-year ban from re-admission or re-entering the United States.

3-year ground of inadmissibility
You face a 3-year bar if you have been in the country illegally for more than 180 days but less than a year.

10-year ground of inadmissibility
If your unlawful presence exceeds one year, you face up to a 10-year bar from re-admission or entering the United States. You can only avoid the bar by filing the I-601A Provisional Waiver.

Permanent ground of inadmissibility
If you have overstayed a total of more than 1 year of unlawful presence with several trips in between and left the country, you may not be allowed back in the United States forever.

Extreme Hardship: The I-601A Letter

Your I-601A waiver is approved based on one primary factor, proof of hardship. The I-601A waiver letter is an important part of the I-601A waiver application process. This letter explains why the applicant needs the waiver and highlights the extreme hardship that would be caused to their qualifying relative (usually a U.S. citizen or lawful permanent resident spouse or parent) if they were not granted the waiver.

While not all hardships are equal and family situations are different, extreme hardships means those beyond what happens if you or your loved one left the United States. It is valid when you can demonstrate humanitarian reasons or extreme hardships you, your spouse, family, or parent will suffer in your personal statement. For example, you are the primary caregiver for a child or elderly parent in the United States or your absence impacts your family’s well-being.

At HBM Law, we create a compelling letter so your waiver is likely to be granted and qualify as extreme hardship. A well-documented I-601A waiver application must include the I-601A letter, supporting evidence, and sincere remorse and future intentions. We present your I-601A waiver letter sincerely and clearly emphasizing the human impact of the potential separation. Our professional team is here to keep you and your family together.

The I-601A Provisional Waiver Application Process

Navigating the I-601A waiver application can seem daunting, which is why we provide a straightforward step-by-step guide to help you understand the process:

1. File Your I-130 Petition

• Start by submitting the I-130 petition to the USCIS.
• You’ll first receive a receipt notice (NOA1) confirming the USCIS has received your petition.
• Once approved, you’ll receive the approval notice (NOA2).

2. National Visa Center (NVC) Processing

• The USCIS will notify the NVC about your case.
• The NVC will open your case and assign you a case number.
• You’ll receive instructions from the NVC on the next steps.
• Pay the required fees: the Affidavit of Support (AOS) fee and the Immigration Visa (IV) application fee.(Please don’t submit Form I-864 or DS-260 yet!)
• After payment, you’ll get receipts confirming your fees.

3. Submit Your I-601A Waiver

• Apply for the I-601A waiver by providing proof of hardship.
• You’ll receive a receipt notice for your waiver application.
• The USCIS will inform the NVC about your waiver. The NVC will not schedule an interview until the waiver decision is made.
• You’ll get a letter for your biometrics appointment at the Application Support Center (ASC). Complete this step and watch out for any additional requests for information.
• Wait for the USCIS to make a decision on your waiver. If approved, you can then submit Form DS-260 and Form I-864. You might get an additional request for evidence.
• Once the USCIS closes your case, you’ll be ready for the next step.

4. Consular Processing in Your Home Country

• The NVC will arrange an interview with the U.S. consulate in your home country.
• Before the interview, gather necessary documents like medical exams, lab tests, and police certificates.
• Attend your visa interview at the consulate.
• If your visa is approved, follow the instructions for picking it up.
• You’ll receive a sealed envelope with your visa to present to Customs/Immigration when you return to the United States.
• Your Green Card will be sent to your U.S. address once you arrive.

I-601A Filing Fees and Processing Times 2024

Processing timelines may vary depending on workload and country of application. The filing fee for the Form I-601A is $795. Complete information can be found by visiting the USCIS I-601A, Application for Provisional Unlawful Presence Waiver page. 

Choose HBM Law’s Waiver Services in Iowa for Effective Advocacy

Unlawful presence in the United States can affect your application for permanent residency or citizenship through naturalization. You face a 3 or 10-year bar if proven to have been in the country illegally. However, our immigration attorney can help you file an I-601A provisional waiver to avoid the bar and expedite your permanent residence application process. HBM Law will also help you with the application documentation and the I-601A letter and defend your rights under the law. We are one of Iowa’s few immigration law firms that are predominantly immigrants with a laser focus on family immigration. We know the American legal system and factors that influence the USCIS to grant or deny I-601A waivers. If you’re a foreign national with language barriers and don’t know how to handle the situation, we understand the unique challenges you face and will overcome them with you.

Don’t wait for a 3 or 10-year bar from re-admission or entry into the United States to happen to you or your loved one. Contact us today to learn more and schedule an appointment with our experienced I-601A waiver lawyer and our HBM Law Offices based in Iowa.